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Week in Review

By Martha Nimmer

Settled, Not Stirred

After more than five decades, it appears that the ownership rights of Agent 007 have been settled. Last week, Danjaq, LLC (Danjaq), the producer of James Bond films, and Metro-Goldwyn-Mayer (MGM), the films' distributor, announced that they had reached an agreement with the estate of Kevin McClory.

In 1959, McClory met with Ian Fleming, the author who created the famous British secret agent. According to McClory, at that meeting, he proposed the idea for making the Fleming spy novels into motion pictures. A writer was eventually hired to create the movie "Thunderball", which later became a Fleming novel. In 1961, after the Thunderball novel was released without credit to McClory, he filed suit, claiming co-authorship and creation of "Thunderball" characters and elements. Fans of the Bond films will realize, however, that "Thunderball" was not the first Bond movie; as it turns out, instead of making "Thunderball" into the first Bond film ever released, Fleming licensed "Dr. No" into production, which came out in 1962. Eventually, Fleming and McClory arrived at a settlement, thereby paving "the path for the latter's Thunderball in 1965."

That period of harmony was short lived, however. According to the firm BakerHostetler, which represented McClory, "interpretation over the intellectual property rights granted in the McClory/Fleming settlement resulted in law suits over Bond for decades. Most famously, a significant ruling in the London courts in 1983 held that McClory was allowed to produce James Bond films." Armed with that court ruling, McClory went on to make the 1983 Bond film "Never Say Never Again". Years later, McClory eventually tried to sell his rights to make Bond films, but a judge enjoined the attempted sale to Sony in 2001. McClory died in 2006.

Now, as part of an agreement with MGM and Danjaq, those companies will acquire the McClory family's rights to make Bond films. So for now, the James Bond character is safe. Evildoers beware.

http://www.hollywoodreporter.com/thr-esq/james-bond-mgm-danjaq-settle-656432

Unsportsmanlike Conduct

The National Collegiate Athletic Association (NCAA) has sued video game maker Electronic Arts Inc., or EA Sports, claiming that the company has "breached contractual and fiduciary duties when acting as its business partners in producing popular college-sports videogames [sic]." The suit, filed in the Superior Court of Fulton County, Georgia, also names as a defendant the licensing rights firm Collegiate Licensing Co. (CLC), which manages licensing rights for many universities, as well as the NCAA. CLC, the complaint states, "failed to adequately supervise" co-defendant EA Sports. According to the NCAA, this failure has thus "subjected the NCAA to potential liability in several lawsuits currently being litigated relating to EA's alleged use of NCAA student athletes' names, images, and likenesses in EA's NCAA-themed video games."

The lawsuits to which the NCAA is referring include the Ed O'Bannon NCAA likeness case commenced by the former UCLA player in 2009. The NCAA's filing against EA Sports came just two months after a "$40 million settlement agreement announced in September by EA Sports and CLC, which used to be co-defendants with the NCAA in the O'Bannon case." The NCAA's suit against EA Sports and CLC says that CLC breached its duties, including the prohibition against self-dealing, when CLC acted in settlement negotiations without the NCAA's knowledge, authorization or participation." The NCAA seeks to prevent EA Sports and CLC from completing the $40 million settlement agreement, and hopes to have EA Sports held responsible for future liability judgments and legal fees.

http://online.wsj.com/news/articles/SB10001424052702304607104579210550694720172

Just Say No

Pharmaceutical company AbbVie Inc. (AbbVie), the owner of prescription pain medication Vicodin, has sued California-based boutique Kitson in Los Angeles federal court for trademark infringement. According to the complaint, the popular store sells a line of sweatshirts and jerseys made by designer Brian Lichtenberg, which feature the names of prescription drugs, such as Vicodin, Xanax and Adderall. The clothing bearing the mark Vicodin, AbbVie avers, "makes it seem as if 'popping Vicodin is a cool, 'in' thing to do.'" To make matters worse, the plaintiff claims, Kitson also displays the apparel in its window with the slogan "Just What the Doctor Ordered."

In addition to claims of trademark infringement, AbbVie also claims that the items featuring the Vicodin name harm the public by glamorizing illegal and irresponsible prescription drug use. "This harm is especially acute for those influenced by fashion trends promoted through trendsetting retailers like Kitson, as they will be led to believe that AbbVie thinks popping Vicodin is a cool, 'in' thing to do," the company writes. The plaintiff added that it intentionally avoids marketing Vicodin directly to the public; additionally, AbbVie has also invested in promoting "safe and responsible prescription drug use," which the company fears may be undone by the production and sale of the Vicodin jerseys.

AbbVie Inc. seeks an injunction and an unspecified monetary award, which the pharmaceutical company says will be donated "in its entirety to prescription drug abuse outreach and educational programs."

http://www.entlawdigest.com/2013/11/20/2826.htm

Collecting on Copyrights

The copyright industry added one trillion dollars to the United States Gross Domestic Product in 2012, according to a study by the International Intellectual Property Alliance, a Washington-based trade group. The study tracks the economic contributions of U.S. industries that create, produce, distribute or exhibit copyright materials, such as books, newspapers, music, films and video games.

According to the report, 2012 marks the first year that U.S. copyright industries added one trillion dollars to the American economy in a single year. That figure also accounts for almost 6.5% of the nation's economy. Furthermore, the copyright industries also generated a staggering $142 billion in foreign sales and exports. Additionally, these industries employ nearly 11.1 million workers, roughly 8.4% of the U.S workforce. On average, these workers receive annual compensation of $75,926, which is 18% higher than the average annual U.S. wage.

Bravo, copyright industry!

http://about.bloomberglaw.com/legal-news/authentic-brands-apple-netapp-intellectual-property/

Read the report here:
http://www.iipa.com/pdf/2013_Nov19_Press_Release_Copyright_Report.pdf

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This page contains a single entry from the blog posted on November 22, 2013 10:13 AM.

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